Citation Nr: 21014790 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 14-24 866 DATE: March 15, 2021 ORDER The appeal concerning the issue of entitlement to service connection for sleep apnea is dismissed.  REMANDED Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left ankle disability is remanded. FINDINGS OF FACT 1. An April 2018 Board of Veterans’ Appeals (Board) decision denied entitlement to service connection for sleep apnea. The Veteran timely appealed that decision to the United States Court of Appeals for Veterans Claims (Court). 2. The Court did not disturb the April 2018 Board decision to the extent that it denied entitlement to service connection for sleep apnea. 3. The Veteran or his representative has not identified, and the evidence does not otherwise reflect, any new argument in support of the claim of entitlement to service connection for sleep apnea. 4. There is no case or controversy within the Board’s jurisdiction regarding the issue of entitlement to service connection for sleep apnea. CONCLUSION OF LAW The appeal concerning the issue of entitlement to service connection for sleep apnea is dismissed. 38 U.S.C. § 7105(d); 38 C.F.R. § 20.104. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from July 1988 to July 1992, including service in Southwest Asia. This matter comes before the Board on appeal from a November 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In an April 2018 decision, the Board denied the claims on appeal. The Veteran appealed that decision to the Court. In a February 2019 Order, the Court, pursuant to a Joint Motion for Partial Remand (JMPR) filed by the parties, vacated the April 2018 Board decision, in-part, and remanded the appeal to the Board for compliance with the terms of the JMPR. The Board remanded the appeal for further development in August 2019. Notably, during the pendency of this appeal, a September 2020 rating decision awarded service connection for subjective fatigue of unknown etiology and bilateral hip disabilities. These issues are accordingly not in appellate status. Regarding the issue of whether a May 2012 informal claim constituted a request to reopen a previously denied claim of entitlement to service connection for joint pain and muscle soreness as part of a qualifying illness under 38 C.F.R. § 3.317, the RO confirmed and continued the denial of that issue in September 2020 and November 2020 rating decisions. While the Veteran indicated disagreement with those rating decisions, such action was not completed on the appropriate form and a valid Notice of Disagreement (NOD) was not filed. In this regard, the Board emphasizes that a NOD must be properly completed on a form prescribed by the Secretary. See 38 C.F.R. § 20.202(a). Accordingly, the Board lacks jurisdiction over this matter. Should the Veteran wish to pursue the matter further, he is encouraged to file a proper NOD on the requisite form with the assistance of his representative. 1. The appeal concerning the issue of entitlement to service connection for sleep apnea is dismissed.  Under 38 U.S.C. § 7105(d), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Here, in an April 2018 decision, the Board denied several claims of service connection that were on appeal at that time. As noted above, in a February 2019 Order, the Court granted a JMPR, vacated and remanded the Board’s April 2018 decision, in pertinent part, to the extent it denied entitlement to service connection for fatigue and sleep disturbances as part of a qualifying illness under 38 C.F.R. § 3.317 as well as entitlement to service connection for chronic fatigue syndrome. Notably, in the JMPR, the parties agreed that “the April 2018 Board decision should not be disturbed to the extent that it denied entitlement to service connection for . . . sleep apnea.” See JMPR at 2. Accordingly, the Court dismissed the appeal as to that issue, in addition to other issues that were also not disturbed in the JMPR. In August 2019, upon receiving the appeal back from the Court, the Board erroneously remanded the issue of entitlement to service connection for sleep apnea for further development. The Board emphasizes that a remand is in the nature of a preliminary order and does not constitute a final decision of the Board. See 38 C.F.R. § 20.1100(b). Moreover, no favorable evidence was generated as a result of the remand. The Board reiterates that the Court did not disturb the finality regarding the denial of service connection for sleep apnea. Furthermore, neither the Veteran nor his representative has presented any new argument in support of service connection for sleep apnea since the February 2019 Court Order, and the record does not otherwise indicate this benefit is warranted. Accordingly, absent any allegation of specific error of fact or law on this issue, to include by the Court, there is no legal basis for the Board to again adjudicate the Veteran’s entitlement to service connection for sleep apnea. The Board has no alternative but to dismiss the appeal in this matter. See Sabonis v. Brown, 6 Vet. App. 426 (1994).  REASONS FOR REMAND 2. Entitlement to service connection for a right ankle disability is remanded. 3. Entitlement to service connection for a left ankle disability is remanded. Remand is warranted, as the December 2019 VA examiner’s opinion is inadequate. Specifically, the examiner did not address the Veteran’s lay statements, did not provide sufficient rationale in support of his opinion, nor did he adequately address secondary service connection. Accordingly, an addendum opinion with a different examiner is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). All outstanding treatment records should also be secured on remand. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then obtain an addendum opinion from an examiner other than the December 2019 VA examiner addressing the etiology of the Veteran’s bilateral ankle disability. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. Following a review of the claims file, the examiner should opine as to whether it is as least as likely as not (50 percent or greater probability) that the Veteran’s diagnosed right and left ankle sprain: (a) had their onset in or are otherwise related to service, to include as a result of the documented August 1989 diagnosis of achilles tendonitis, as well as the endorsement of swollen/painful joints and foot trouble during the June 1992 separation examination; (b) are proximately due to his service-connected knee disabilities; or (c) have been aggravated (worsened beyond natural progression) by his service-connected knee disabilities. In addressing these questions, the examiner must discuss and assume as true the Veteran’s report of sustaining injuries to his ankles when a bunker caved in on him in Southwest Asia (see January 2016 Decision Review Officer Hearing at 3-7) and that he has had continuous ankle pain since his deployment (see December 2019 VA ankle examination, Section II Medical History) and determine, based on the same, whether a nexus between the Veteran’s ankle disabilities and service is “medically plausible.” Failure to consider the Veteran’s lay statements will result in an inadequate opinion. Also, please note that the lack of contemporaneous medical records is not dispositive and may not be used as a basis for a negative opinion. In addressing secondary service connection, please note there is no temporal requirement that the primary condition (knee disabilities) be service-connected, or even diagnosed, at the time the secondary condition (ankle disabilities) is incurred. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without speculation, please provide a basis for that conclusion. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.S. Mahoney The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.